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Labour, Greens right on GCSB report

COMMENT: The Urewera 17 are no doubt all loathsome individuals or loser fantasists and some were convicted in a fair trial of serious offences. But that doesn't mean either the police or the GCSB get to break the law.

Matthew Hooton
Thu, 23 May 2013


The Labour/Green opposition is absolutely right to slam Inspector-General of Intelligence and Security Paul Neazor’s report into alleged illegal spying of New Zealanders, but wrong calling for it to be released.

Reports on security matters should always be kept secret so that they are not seen by the country’s adversaries, with the proper oversight being that they are seen by the Intelligence and Security Committee, which consists of John Key, David Shearer, Peter Dunne, Russel Norman and John Banks.  No doubt the committee will be asking to see this one.

The higher-order issue is that neither the committee nor the public needs to see the report to know it is fatally flawed.

A quasi-judicial investigation into alleged abuses of state power that clears the relevant agency on the grounds there were “arguably” no breaches of the law should be thrown in the rubbish bin.

First, it is hardly doing its job for what amounts to a final appeal authority to reach such an indecisive conclusion.  The Supreme Court tends not to conclude that “arguably” the Court of Appeal didn’t get the law wrong but then again it might have.  The final appeal authority’s job is to reach a conclusion one way or another.

Worse, a conclusion that reads “arguably there were no breaches of the law” can be re-written as “arguably there were breaches of the law” without any change in meaning.

It is not necessary to be a swivel-eyed conspiracy theorist like Nicky Hager to think Justice Neazor’s decision to approve the use the former instead of the latter is an outrageous piece of spin from a judicial officer.

To put this gently, it suggests the 79-year-old’s work is no longer of the standard he would have expected from his officials and clerks when he was Solicitor General or High Court judge.

What Justice Neazor appears to have forgotten is that when the state exercises power over the citizens – in the form of the IRD demanding a third of our profits, or the Ministry of Education telling us which school our kids must go to, or the cops pulling us over for speeding, or a spy agency listening to our phone calls – it is not good enough that they “arguably” haven’t broken the law.

To exercise power over the citizen, the state must be able to point to clear legal authorisation.  If it can’t, the benefit of the doubt lies with the citizen and, far from being cleared, the book should be thrown at the relevant agency.

Compare Justice Neazor’s conclusions with that by the Chairman of the Independent Police Conduct Authority, Judge Sir David Carruthers into then police commissioner Howard Broad’s Operation Eight, in which then prime minister Helen Clark also had involvement.

Like Justice Neazor, Sir David is an establishment figure and no raving leftie.

He found that the police were entitled, on the information they had, to view Tame Iti and the other loons as representing a real and potentially serious threat to the community.  He reports that the police investigations, including those which were covert, were reasonable and necessary.  His judgment is that the decision to launch the Urewera raids was also reasonable and justified.

He even notes, apparently approvingly, that: “From a policing perspective the termination phase of Operation Eight was concluded safely. No shots were fired by Police or others, despite Police locating a number of firearms and weapons. All target individuals were located without incident and no members of the public were put at risk.”

He found that claims by left-wing activists that a busload of school kids was held at gunpoint was a lie.

This is where the comparison between Sir David’s work and that of Justice Neazor ends.

Sir David found that the police acted unlawfully in establishing roadblocks and in detaining and searching people during Operation Eight.  But he did not go on to explain away the illegality on the grounds that maybe the law was unclear and “arguably” the roadblocks, detentions and searches could therefore have been legal.

Nor did he try to spin the illegality away as a small breach as part of an otherwise legitimate, necessary and safely concluded operation.  To the contrary, he made the police’s breach of the law the title and first paragraph of his media statement.  He recognised that it doesn’t matter how many things the state did lawfully, safely and professionally that day.  That is only to be expected.  The important thing is always what the states does illegally.

To the credit of new commissioner Peter Marshall, the police did not spin Sir David’s report either.  He accepted the findings, apologised for what had happened and said he has and will continue to fix things.

In contrast, GCSB boss Ian Fletcher went into full spin mode, headlining his media statement “IGIS finds no GCSB breaches, but law not clear.”  He went on to say: “The Inspector-General formed a view that there have been no breaches, although the law is unclear and the Inspector- General recommends amending it.”

It was necessary to read only three paragraphs down to get to the “arguably no breaches” bit and discover – again to put this gently – that what Mr Fletcher was claiming was not quite true.

The Urewera 17 are no doubt all loathsome individuals or loser fantasists and some were convicted of serious offences in a fair trial.  For their part, the GCSB 88 probably should be kept under close watch.

But that’s just my opinion and it doesn’t mean either the police or the GCSB get to break the law, or justify the watchdogs, if the law us unclear, deciding to side with the state over the individual.  By analogy, just because the IRD might claim to mean well doesn’t mean it gets to break the law.  And, if the tax laws are unclear, we don’t expect the tax watchdogs to side with  the tax collectors over the taxpayer.

This matters more than ever after the abuses of Ms Clark’s regime and with the prospect of a Labour/Green government just 18 months away.

Sir David obviously gets all this.  Justice Neazor obviously doesn’t.  Mr Key should get rid of him and appoint the independent inquiry the Labour/Green coalition is calling for.

Matthew Hooton
Thu, 23 May 2013
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Labour, Greens right on GCSB report